This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

No capacity to consent, judge rules in sex assault case

When the woman woke up around 11 a.m. Saturday morning she had no memory of where she was and how she got there.

Her cellphone was ringing. There was no one in the room with her.

How do courts decide how drunk is too drunk to consent to sex --- especially when the complainant can't remember what happened. In this case, it comes down to surveillance videos from a bar and hotel elevator. (SYSTEM / COURT EXHIBIT)

“I was in a panic,” she recalled while testifying in court. “I felt kind of in an altered state…I had no clue what just happened…I woke up with no clothes on, my stuff was everywhere.”

She could feel that she had been physically “violated,” she said

She had one fragment of a memory: lying in bed with a man hovering over her. She was saying no two or three times.

Article Continued Below

She called hotel reception to ask who the room was registered to. They wouldn’t say.

Her roommate told her to call them back and tell them what she thought happened.

She did.

“I woke up in this hotel room,” she said she explained. “I have no clue what happened. I think I’ve been raped.”

When a complainant can’t remember what happened and, as in most cases, there is no other witness apart from the accused, proving in a court that she was sexually assaulted can be an almost insurmountable task.

The 20 or so minutes of video show the complainant being introduced to Moazzam Tariq at a bar at around 2:20 a.m. on July 18, 2015 and, within twenty minutes, being in an elevator with him at a hotel appearing on the verge of passing out.

It’s not enough evidence to find the woman did not consent to sex with Tariq, Ontario Court Justice Mara Greene found, but it does show the woman was too intoxicated to have the ability to consent to sex – and that Tariq ignored the clear signs.

Lawyer Angela Chaisson, who was not involved in this case, says this decision is significant because it brings some clarity to a complicated legal area.

Moazzam Tariq arrives at Old City Hall court for the verdict. He was found guilty of sex assault. (Bernard Weil)

Unlike with impaired driving, there is no blood alcohol limit that means you automatically cannot consent to sex. Simply being drunk doesn’t mean you aren’t capable of consenting, nor does making bad or risky decisions due to a loss of inhibitions. Having an alcohol or drug-induced memory blackout doesn’t automatically mean you aren’t capable of consenting. Even falling down drunk or vomiting isn’t proof of incapacity on its own. The only clear line is when someone is passed out.

So at what point is a person incapable of giving informed and meaningful consent while they are conscious?

The test is whether they can understand the risks and consequences of the sexual act and have the ability to realize that one can refuse, Greene said. That bar is very high – only a “minimal cognitive capacity” is required to consent to sex.

In one case referred to by Greene, the complainant was so intoxicated that she was unable to dress herself but the judge found she was still able to consent because she had been able to make a decision to ignore the warning of a friend.

In this case, the last memory of the complainant, whose identity is under a publication ban, is from around 2 a.m. She had been at a friend’s birthday party at a club in the Entertainment District and was heading to the bathroom while a friend settled the bill. She’d already had at least five drinks.

Surveillance video shows her arriving at another bar, The Everleigh, at around 2:20 a.m. where she was met by a club promoter she knows.

The promoter introduced her to the accused, Moazzam Tariq at around 2:21 a.m. Tariq encourages her to drink — three times pouring vodka from a bottle directly into her mouth.

The “accused seem determined to get her drunk or at least have her continue drinking,” prosecutor Jill Witkin argued during closing arguments. He should reasonably see how the alcohol is affecting her, and her responses to him offering her the drinks, she said.

“This can only lead to one inference,” she argued. “That he wants her to be drunk.”

At one point, while the complainant is kneeling on the seat of a booth while texting, Tariq starts grinding against her.

“This is evidence of, at a minimum disrespect and more of objectification, which in my submission is inconsistent with someone who is mindful to another’s state of mind,” Witkin said.

They leave together 13 minutes later. As they walk through a hallway and down a flight of stairs to the exit, the complainant sways and appears to be leaning on Tariq for support.

“It doesn’t look like I can really walk,” the complainant testified as she was shown the videos in court.

The first physical contact between the complainant and the accused came about three minutes after they first met at The Everleigh. The complainant appears to refuse a drink from the vodka bottle offered by another man. The accused appears to insists she have a drink. He takes the bottle from the other man, takes her arm, pulls her over to him and pours the vodka bottle into her mouth.

Surveillance from the hotel lobby shows that Tariq actively holds her up as they walk into the lobby. He books a room and the final video shows them in the elevator together.

The complainant’s body is slumped against the wall, her eyes closed for most of the time. She appears disoriented.

Greene observed that “in this video Mr. Tariq looks completely sober. In fact, in all the footage, Mr. Tariq looks completely sober. In this video, his sobriety provides a sharp contrast to (the complainant) who now appears very intoxicated, lethargic, and at times, dazed.”

Tariq, now 29, did not testify.

In closing arguments defence lawyer Danielle Robitaille said the videos don’t allow for an accurate assessment of the complainant’s cognitive capacity. She pointed out that, according to the testimony of a toxicologist, poor motor skills don’t necessarily mean someone is cognitively impaired.

“People are allowed to look a little sleepy before they engage in sex,” she said.

She argued the complainant appeared to make deliberate, conscious choices while at The Everleigh – accepting or refusing drinks and deciding when she did not want to dance with Tariq. She also displayed an awareness of her surroundings, keeping track of her phone and purse and adjusting her jeans, Robitaille said.

“Deliberate, conscious choices could also be happening in the room at the Thompson hotel,” Robitaille argued.

And even if the judge were to find the complainant was incapacitated when they first entered the hotel room, she argued, there is no way to know when the sex took place between 2:40 a.m. and 9 a.m. when Tariq left.

Greene rejected that argument.

It “defies common sense” that based on their brief time together, lack of conversation and the complainant’s unresponsive state, they stayed up for hours then had sex, or that she fell asleep, woke up and they had sex, Greene said.

Greene found that it is possible the complainant was still capable of consenting at The Everleigh, but by the time she reached the hotel she was not.

In particular, the complainant had an “illogical” 27-second phone conversation while in the lobby with one of the friends she’d been at the birthday party with, Greene found.

He said he was at the Thompson diner. She replied: “I’m on my way, wait for me.”

After briefly dancing with the accused and having another drink from the bottle, the complainant turned away and knelt on the booth seat using her phone. Shortly after the accused approaches her and appears to grind against her while a friend of his takes photos. Two of the photos were found on the accused's phone, court heard.

The Thompson diner adjoins the Thompson hotel, making the complainant hardly a minute’s walk from her friends.

It would have made more sense for her to have said: “I’m here. Wait for me,” the Crown argued to show the complainant had no idea where she was.

The phone call, a series of apparently random attempts the complainant made to contact friends with her phone and the surveillance videos are evidence enough to find Tariq guilty of sexual assault, Greene said.

“I am satisfied beyond a reasonable doubt that (the complainant) did not appreciate where she was or what she was doing,” she said. “(She) did not realize she could refuse to go with Mr. Tariq and say no to sexual intercourse.”

Greene also found Tariq either knew the complainant was incapable of consenting or was reckless or willfully blind to that fact. Since he did not testify, she said, there was no basis to find that he had a mistaken belief that she was consenting.

The complainant was in the courtroom as the verdict was read with a small group of family and friends. In a statement provided to reporters after the verdict, the complainant said she “is relieved that after today I can start the healing process.”

The case highlights the importance of the surveillance video, said Amanda Dale, executive director of the Barbra Schlifer Clinic.

“To meet the standard of reasonable doubt regarding ability to consent, (Greene) relied almost exclusively on the video in the hotel and of the elevator ride as demonstrating (the complainant) being dazed and confused,” she says.

Dale also points out the careful distinction Greene drew between ethical behaviour and criminal behaviour.

“The ethical line would be far lower a standard of proof,” Dale says.

The last and most crucial video the court was shown is from the elevator of the Thompson hotel. The complainant's eyes appear to close and her head falls forward as she slumps against the wall of the elevator. She testified that it looks like she is passing out.

Chaisson, who often works with sexual assault complainants, says that the presence of surveillance videos like this in sexual assault cases remains unusual.

“Often what sexual assault complainants run up against by the time they go to the police, or by the time police actually investigate what happened, any surveillance video is taped over…and usually in today’s society there is a video in the condo lobby, hotel, restaurant, almost every street corner,” she says.

But, as in this case, video can offer impartial evidence especially important in cases involving drinking and memory loss, she says.

Chaisson acknowledges it can be difficult to tell how drunk a stranger is and whether they are capable of consenting. But that, she says, is why the law requires people to take reasonable steps to make sure their partner is giving informed consent.

“A simple yes is not enough. You have to make sure they know what they are saying and they mean it. That is why it’s so important to change societal norms and have real, informed consent be something we just do...and for people to say, you’re drunk and I’m putting you in a taxi and making sure you get home,” she says.

“This is most women’s worst nightmare…being vulnerable and being preyed upon. We need to do a much better job protecting those women. Bars need to do a much better job. Hotels need to do a better job.”

She added it is concerning that Tariq and others may still think “his actions were socially and legally permissible and they are not either of those things,” she said.

Tariq declined to comment.

A sentencing hearing will take place Dec 1. The Crown did not seek that Tariq’s bail be revoked in the interim. He faces a maximum sentence of ten years in prison.

More from The Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com